FCC Approves Order Preempting Municipal Control of the Public Right-of-Way

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Federal Communication Commission, rights-of-way, ROW

On Wednesday, the Federal Communications Commission (“FCC”) held a public meeting where it voted to approve a Declaratory Ruling and Third Report and Order (“Order”) that substantially limits local control of public rights-of-way (“ROW”). As we previously reported, the Order applies aspects of the Federal Communications Act to municipal review of applications for small cell wireless facilities within the municipal ROW.

The Order restricts the kinds and types of limitations and standards that local governments can set for wireless facilities seeking access to the ROW.  This includes limitations and standards set by local governments for aesthetic, safety, and system resiliency purposes.  Standards must be in writing and cannot be unreasonably burdensome.

The Order creates a “shot clock” for reviewing applications for small cell wireless facilities.  Municipal governments must review applications for collocation on preexisting structures within 60 days, and a deadline of 90 days for new builds.  The review period applies for batched applications the same as they would for individual applications. While applications will not be deemed granted if a shot clock timeline is missed, the Order now allows wireless site applicants to seek expedited injunctive relief in court within 30 days of the missed deadline. The shot clock can be paused if the municipality notifies the applicant within 30 days of receiving the application that the application is substantially incomplete.

In response to local advocacy,, the Order will go into effect 90 days after it is published in the federal register, instead of the usual 30 days.  The extended effective date was included in order to ease the burden on local governments needing to adapt to the changes.  The Order can still be opposed through a filing of petitions for reconsideration (“PFR”).  A petition for reconsideration requests that the commission review an action it has already taken. This is different from submitting comments during the open comment period. Given the controversial nature of the FCC’s action numerous PFR’s are expected to be filed.  We will continue to keep you updated on this matter should there be further developments.

Local governments are the stewards of public rights-of-way, which are used by telecommunications providers to build their own networks.  By narrowing the window and resources for evaluating small cell applications, the FCC is hindering local government’s ability to fulfill public health and safety responsibilities during the construction and modifications of small cell facilities. For more information on the Order and its impact, please see a recent post from our national affiliate, the National League of Cities.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.

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FCC Proposed Order Dramatically Limits Control Over Municipal Rights of Way

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FCC, Federal Communication Commission

On Wednesday, the Federal Communications Commission (“FCC”) released draft text of a Declaratory Ruling and Report and Order  (“Order”).  If approved, the Order would severely restrict local government control over their rights of way (“ROW”) by specifically preempting local siting processes for small cell wireless facilities.

The Order is a direct result of the FCC’s Broadband Deployment Advisory Committee (“BDAC”) hearings, which we have alerted our members to last summer, and earlier this year.  As was feared, the FCC has accepted the BDAC’s recommendations despite those recommendations coming from a committee composed almost exclusively of industry representatives, and operating under the false assumption that local regulations act as a prodigal barrier to small cell deployment.

The Order would definitively conclude that Sections 253 and 332(c)(7) of the Federal Communications Act (“Act’)would apply to state and local governments’ review of applications to place small cell wireless facilities within the municipal ROW.  These sections of the Act, which are currently not considered applicable to small cell facilities, restrict what conditions and standards local governments can place on those seeking access to the ROW.  This includes limitations and standards set by local governments for aesthetic and system resiliency purposes.

In addition, the Order seeks to limit the fees that state and local governments can charge for processing applications.  The Order would limit application to the actual cost of review, a number which is often difficult to determine.  Furthermore, the Order identifies special fee levels for certain small wireless facility deployments which presumptively invalidates a higher fee and would place the burden on the reviewing entity to prove the necessity of the higher fee.

The Order also establishes a new “shot clock” for review of small cell wireless facilities.  Under the proposed Order review of applications would need to be completed within 60 days for collocation on preexisting structures and 90 days for new builds.  More drastically, the Order would find that the shot clock begins at the date of a pre-application meeting.  These changes severely limit the time in which municipalities can review applications and would also start the time for review before complete information is available.   While the shot clock is shortened, there is no indication from the Order that an application would be deemed granted as a remedy if a shot clock is overrun.

This Order is still a draft and will need to be voted on and approved at the next Open Commission Meeting, scheduled for Wednesday, September 26, 2018.  Efforts to advocate against these preemptive changes can take place until September 18, 2018, but after that federal law prohibits additional lobbying until after the proposal is published in the Federal Register.  A vote to approve the changes is expected to succeed, at which point local governments may file petitions for reconsideration or appeal the Order.

We are monitoring the work of our national affiliates at the National League of Cities (“NLC”) on this matter, which is preparing a template letter that our members can use as a base for filing their own objections with the FCC.  We will share this letter template once it has been finalized by the NLC for you to use to express your concern with the Order to the FCC, our Senators, and Congressional delegation.

If you would like more information on small cell wireless systems and the application of federal law to local review of siting applications, please review the Bureau of Municipal Information white paper, Wireless Systems in the Right of Way, What You Need to Know.  You can also find more information on how to plan for small cell wireless infrastructure in the League’s daily update from August 27, 2018, which includes a link to NLC’s model ordinances.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.

 

 

 

FCC Committee Holds Meeting on Broadband Deployment

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Broadband Deployment Advisory Committee, FCC, Federal Communication Commission

Yesterday, the Broadband Deployment Advisory Committee (BDAC) met to discuss the progress their working groups have made on creating model codes at the state and municipal levels, as well as to discuss more generally the barriers to broadband deployment.  If you have been following this issue you are aware that Federal Communication Commission (FCC) created the BDAC and tasked it with examining current barriers to broadband deployment and making recommendations to the FCC on how to best overcome these barriers to accelerate the deployment of broadband throughout the country.

While the Committee has yet to conclusively identify what the barriers to deployment are, the discussions alluded to a potential few.  One sentiment that was echoed by nearly all members of the working group, which is made up nearly exclusively from industry participants, is that the variety of regulations amongst local governments is by far the biggest obstacle to widespread broadband deployment.  Some committee members even went as far as to advocate for the FCC to step in and overrule the local governments by creating a set of nationwide standards for municipal permitting procedures and Right of Way (ROW) access, at least when broadband deployment is concerned.

A second potential barrier discussed concerned the fees and stipulations utility companies have instituted on pole access.  While addressing their potential to be labeled as a barrier, a committee member representing electricity providers servicing rural areas made note that a few of the suppliers she represents have offered pole access free of charge if a broadband provider wanted to come to those rural towns and provide broadband.  Not a single provider took advantage of these offers.  If the broadband providers were indeed seeking their stated altruistic goal of providing everyone with broadband service surely they would have eagerly pursued this opportunity.  The fact that they did not speaks for itself.

This meeting is a foreshadowing of what is to come – rulemaking by the FCC that would take all power from local governments to control their ROW and other permitting.  The most concerning part of this entire process is the limited voice given to local government in contrast to the heavy involvement of industry participants.

The industry is seeking to deploy its services in the most inexpensive way it can, by forcing local governments to give them access to municipal ROW and disregarding legitimate concerns of municipalities and taxpayers.  While providing broadband access to everyone is a worthwhile goal it should not be accomplished through the means suggested.  Each municipality is unique and the local governments are in the best position to know what needs to be done to protect the health, safety, and welfare of their residents.   Allowing a one-size-fits-all approach at a national or even statewide level for broadband deployment is, in essence, making the determination that the deployment of broadband trumps these concerns.

The BDAC’s will meet again in the fall to review the municipal and state model codes currently being prepared by their respective working groups.  Along with these model codes, the working groups hope to provide an explanatory document which will discuss the thought process and reasoning used in their development.  We eagerly await the model codes and the explanatory documents which will likely be developed strongly in favor of the industry participants, given their strong presence in the committee.  To view a list of the BDAC members please click here and to see a list of the member of each model code working group please click here.  You can view a recording of the BDAC meeting here.

Contact:  Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, 609-695-3481 x137.